A location of land for five years was executed by mutual missives, and possession followed. These missives, though not holograph, were found sufficient to protect the tenant in his possession.
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A location of land for five years was executed by mutual missives signed by the parties, but not holograph. The tacksman was put in possession. But after possessing a year, he was turned out by decreet of the Sheriff, upon this ground, that a missive letter not holograph, cannot support a tack longer than one year.
In the reduction of this decreet, Elchies observed, That missive letters are established by custom, and are not subjected to the regulations of the act 1681; that holograph letters are good by custom only; and that a letter, of which the subscription is acknowleged, affords legal evidence equal to a holograph writing. It was Drummore's opinion, That possession upon a tack null upon the act 1681, is a homologation which secures the tacksman in his possession. And accordingly the Lords sustained the reasons of reduction, and found “That the pursuer ought to be reponed to his possession; and expenses were found due.”
Writ is an essential solemnity in transferring land-property; and wherever writ is necessary as a solemnity, it must be formal, according to the law of the place. But a man may become bound to dispone land, or to grant a tack, without a formal writing, and indeed without any writing at all. It is true, that till a writing be executed, there is locus pænitentiæ. But any probative writing is sufficient to bar repentance. A missive letter, though not holograph, is good evidence of the promise, where the subscription is acknowledged. The action to dispone or to grant a tack is founded on the promise: The letter is good evidence of the promise; and has the effect to bar repentance.
But here we need not go so far. A tenant in possession without writ, may be removed by a warning any year. But even a verbal agreement for a longer possession, ought to be effectual to found a defence against a removing, though it may not be sufficient to found an action for attaining the possession. In pactis liberatoriis, there is no place for repentance. It may be true, that such agreement cannot be proved by witnesses, but it may be proved by writ; and a letter where the subscription is acknowledged is good evidence.
Sel. Dec. No. 21. p. 24.
*** See the report of this case from the Faculty Collection, No. 25. p. 15177. voce Tack.
